Ten commandments of summary judgment practice

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  • 1. THE TEN COMMANDMENTS OF SUMMARY JUDGMENT PRACTICE J. Bradford McCullough Lerch, Early & Brewer, Chtd.www.lerchearly.com November 12, 2012
  • 2. Summary judgment is a powerful weapon It can end a case in its entirety It can strip away portions of the case It can alter the course and contours of the case It is a frequently used tool There are certain fundamental principles that apply – “Ten Commandments”2 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  • 3. 1. Have summary judgment in mindfrom outset of case and throughoutcase. The possibility of summary judgment should be considered at the outset. Some types of cases are very well suited for summary disposition. Know the issues that are likely to be the focus. Know the applicable substantive legal standards. Tailor written discovery and depositions3 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  • 4. 2. Keep in mind proper timingof motion for summary judgment. Traditionally, most motions are filed after discovery is complete. In some cases, an earlier motion might be appropriate. For example, statute of limitations may apply. Or some other affirmative defense may be established. 4 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  • 5. 3. Have a theme and a focus. Just as you should have a theme for trial, you should have a theme for summary judgment. The facts and the law should be presented in the context of a story or narrative. Give the judge a basis for ruling for you. But also make the judge want to rule for you. Avoid the “shotgun” approach. 5 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  • 6. 4. Know the rules. Different jurisdictions have different rules. Federal district courts have local rules. For example, does the moving party have to submit a statement of material facts that are not in dispute?6 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  • 7. 5. Know the judge. Does the judge have his or her own “rules?” Standing Orders Informal preferences What has the judge previously said?7 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  • 8. 6. Keep it simple. As the moving party, avoid the temptation to look too creative or innovative. As the moving party, there is nothing novel about your case. Courts grant summary judgment in “straight forward” cases, but not in “complicated” ones. As the opposing party, your case is complicated. As the opposing party, do you need discovery?8 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  • 9. 7. Consider partial summaryjudgment. Fed. R. Civ. P. 56 (a) and Md. Rule 2-501 (a) The judge might be more receptive to a motion for partial summary judgment. Remember, be focused – no shotguns. “Pigs get fed, hogs get slaughtered.”9 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  • 10. 8. Remember the beauty of brevity. Less is generally more. Judges are busy – get to the point. Enough said.10 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  • 11. 9. Tone it down: Persuasive is notthe same as argumentative. Do not overdo the rhetoric and do not overplay your hand. Avoid personal attacks, invective, and ad hominem arguments. Avoid adjectives and adverbs.11 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  • 12. 10. Responding? Consider across-motion for summary judgment. Sometimes the appropriate response includes a cross-motion for summary judgment. Sometimes the best defense is a good offense. Is a formal cross-motion needed? See Md. Rule 2-501 (f); compare Fed. R. Civ. P. 56 (a).12 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  • 13. Conclusion Motions for summary judgment are powerful weapons that are frequently used in contemporary civil litigation. Careful attention to the applicable rules, together with knowledge of the substantive law, provides the foundation for analyzing the availability of summary judgment.13 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  • 14. Speaker J. Bradford McCullough is a commercial and business litigator, appellate attorney, and chair of Lerch, Early & Brewer’s appellate practice. Brad is listed in Best Lawyers in America and Super Lawyers in the field of commercial litigation.  (301) 657-0734 jbmccullough@ lerchearly.com14 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  • 15. For more information Lerch, Early & Brewer, Chtd. 3 Bethesda Metro Center, Suite 460 Bethesda, MD 20814 (301) 986-1300 www.lerchearly.com Thank you for your participation15 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com